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NAVY | DRB | 2011_Navy | ND1100508
Original file (ND1100508.rtf) Auto-classification: Denied

ex-AR, USN
Current Discharge and Applicant’s Request
Application Received: 20101229
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630200 [ENTRY LEVEL PERFORMANCE AND CONDUCT]

 Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       Failure to complete swim qualifications

Summary of Service

Prior Service:
 Inactive:         US N R (DEP)        19960125 - 19960806     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19960807     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19961114      Highest Rank/Rate: AR
Length of Service: Year(s) Month(s) 08 D ay(s)
 Education Level:        AFQT: 31
Evaluation M arks:         Performance: N/A          Behavior: N/A    OTA: N/A

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

NJP :     S CM :    SPCM:    C C :

Retention Warning Counseling:

- 19961001 :      For refusing to train, will not step off platform for initial swim.

Types of Documents Submitted/reviewed

 Related to Military Service:
         DD 214:           Service/Medical Record:           Other Records:  

Related to Post-Service Period:
         Employment:               Finances:                 Education/Training:     
         Health/Medical Records:           Rehabilitation/Treatment:                 Criminal Records:       
         Personal Documentation:           Community Service:                References:     
         Department of VA letter:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C, Change 14, effective 3 October 1996 until 11 December 1997), Article 3630200, SEPARATION OF ENLISTED PERSONNEL BY REASON OF ENTRY LEVEL PERFORMANCE AND CONDUCT.

 B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       The Applicant contends his Reentry (RE) code is incorrect ; the code should have been one indicating failure to complete swim qualifications.
2.       The Applicant wants his discharge changed , because it presents an obstacle finding employment with law enforcement agencies.
 3 .       The Applicant wants the Narrative Reason for Separation changed to “failure to complete swim qualifications . ”
4 .       The Applicant contends his record of service, as suggested by his claim of having been an outstanding recruit, warrants consideration for upgrading his discharge.

Decision

Date: 20 1 2 0206             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) warning . I t did not include any non-judicial punishments or trials by court-martial for violation s of the Uniform Code of Military Justice . Based on the Applicant’s failure to adapt to the Navy environment, specifically his inability to pass the swimming requirement, his command administratively processed him for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

: (Nondecisional) The Applicant contends his Reentry (RE) code is incorrect; the code should have been one indicating failure to complete swim qualifications. There is no RE code specifically for fail ure to complete swim qualifications. R egardless, the N DRB is not authorized to change an RE code. Only the Board for Correction of Naval Records can make changes to reenlistment codes.

: ( Nond ecisional) The Applicant wants his discharge changed , because it presents an obstacle finding employment with law enforcement agencies. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant wants the Narrative Reason for Separation changed to failure to complete swim qualifications . The NDRB, under its responsibility to examine the propriety and equity of an Applicant ’ s discharge, will change the reason for discharge if such a change is warranted. Failure to complete swim qualifications is not an official Narrative Reason for Separation. Re gulations direct that the Narrative Reason for Separation be Entry- L evel Performance and Conduct when a service member displays inability, lack of effort, failure to adapt to military environment, or commits minor disciplinary infractions during the first 180 days of active military service. T he Applicant did not have any misconduct that was adjudicated through retention warnings, non-judicial punishments, or trials by court-martial . However, his record of service does reflect his inability to adapt to the Navy environment through his failure to complete swim qualification s . His command determined that his inability to swim impaired his ability to complete the required entry-level training and that he was not qualified for further Naval service . Therefore, the NDRB determined that Entry- L evel Performance and Conduct is the a ppropriate narrative reason for separation. Relief denied.



Issue 4: (Decisional) ( ) . The Applicant contends his record of service, as suggested by his claim of having been an outstanding recruit, warrants consideration for upgrading his discharge . Despite the Applicant’s record of service, he was in an entry-level status (within the first 180 days of enlistment) when he was discharged. Navy regulations direct that the Character of Service for members notified of intended recommendation for discharge while in an entry-level status be Uncharacterized except in circumstances where service has been so meritorious that an Honorable is clearly warranted. The Applicant’s record showed no meritorious service that would warrant an Honorable characterization of service . With respect to non-service related administrative matters, i.e., Department of Veteran Affairs benefits, civilian employment, etc., an U ncharacterized separation shall be considered as the equivalent of an Honorable or General (Under Honorable Conditions) characterization. The NDRB determined that changing the assigned Character of Service would be against regulations and inappropriate. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . Since 15 years have elapsed since the date of his discharge, the Applicant is not eligible for a personal appearance hearing. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

 Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.
Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

 Secretary of the Navy Council of Review Boards
 Attn: Naval Discharge Review Board
 720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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